22 We agree with Mr Chiappi that while some aspects of his client's case were weak it cannot be said that it had no tenable basis in fact or law to satisfy the test in s 109(3)(c). In particular we consider that the question of law about the s 173 agreement is complex and difficult and is a tenable argument although it was decided against S & B. That the issue may well be disposed by NK and the council bringing the s 173 agreement to an end or by determination of the application to amend the s 173 agreement (which is still on foot) does not affect this conclusion.
23 The structure plan issue is a relatively new proposition arising out of the new policies in Melbourne 2030, involving consideration of VCAT's remarks in Mitcham Towers[2] and consideration of what was said by the Panel in the Wheelers Hill matter. It was a new point and whilst we found that the wealth of planning history and policy for the site and the Ivanhoe Shopping Centre did not warrant refusing the permit in the absence of a structure plan, we are unable to find that the argument was so weak as to have no tenable basis.
24 Many of the other planning issues had been decided in the previous proceeding, but this only took place after S & B had withdrawn and we consider it was entitled to put its submissions afresh insofar as they covered old ground. The re-introduction of the supermarket into the proposal did give rise to new issues and a consideration of the expert evidence did necessitate changes.
25 We find that NK has not shown that the application for review was brought vexatiously or frivolously or that it had no tenable basis in fact or law.
26 We do not agree that without further evidence we must conclude that the application for review was brought for a direct or indirect commercial advantage to satisfy s 150(4). It is obvious S & B's tenant is a major competitor of Safeways and that the introduction of a Safeway supermarket into the centre would create competition for Coles. However whether S & B bought the application for review to secure or maintain a direct or indirect commercial advantage cannot simply be inferred from this. It does have a legitimate interest in the proper and orderly planning of the area and in the maintenance of the planning scheme's retail hierarchy.
27 We consider evidence is needed to prove the proposition that the application was brought for the relevant purpose. We remain uninformed on many relevant issues such as the lease arrangements between S & B and Coles, how long the lease has to run, any options to renew or whether the rent is based on turnover.
28 Likewise in relation to s 150(4) there was no evidence of any loss or damage suffered by NK as a result of the proceedings but merely submissions that they had suffered legal and planning costs as a result of the application. However we consider that the loss and damage referred to in s 150(4) is loss or damage of a different character than the costs of conducting the proceeding, which occurs in every application for review in the Planning and Environment List. The subsection itself distinguishes between an order for costs on the one hand and compensation for loss and damage on the other.
29 We also consider that such loss and damage cannot simply be inferred from the fact that NK had to contest the application for review. Evidence is required. We agree with Mr Chiappi that there are a number of scenarios which could be envisaged where delay did not cause loss or damage, such as uncertainty as to when the project can proceed, financing issues and whether the preferred builder is available, and in the absence of evidence it is not proper for us to draw an adverse conclusion.
30 S 150(4) (a) also raises the issue whether the proceedings were brought vexatiously or frivolously. We have found above this not the case.